In the aftermath of a series of highly publicized teenage suicides,1 the issue of bullying2 has garnered national attention. Responding to these deaths, state legislators have vowed to eradicate bullying by enacting specific antibullying statutes or amending existing criminal codes to encompass bullying.3 Their efforts have had limited success, however: many antibullying statutes are merely unfunded mandates,4 and other legal channels — such as cyberbullying laws, “status-based” hate-crime laws, and laws providing civil remedies — apply only under certain circumstances.5 By contrast, broadly worded criminal harassment statutes may offer a way to penalize bullying behavior regardless of where it takes place and whether the victim belongs to a protected class.6
Recently, in In re D.S.,7 the Iowa Supreme Court reversed a juvenile court’s finding that a fifteen-year-old had criminally harassed her classmate. In demanding that a defendant must initiate contact with a victim, the D.S. court adopted a narrow interpretation of Iowa’s criminal harassment statute that neither the statutory text nor relevant precedent requires. With this interpretation, the court limited — but did not foreclose — the availability of criminal harassment statutes as one of the most generally applicable channels through which the legal system can address bullying behavior.
After exiting her school bus one afternoon in February 2013, fifteen-year-old D.S. sought to grab the attention of her friend, T.F., by yelling her nickname, “T bitch.”8 Their classmate, T.B., mistakenly thought that D.S. was addressing her, so she responded, “What?”9 D.S. then replied to T.B.: “I wasn’t talking to you[,] you fat skanky bitch! I’m way better than you [and] prettier than you and I’m not desperate like you to sleep with the bus driver.”10 D.S. and T.B. stood approximately ten feet from each other during this encounter.11 T.B. returned home and cried about the incident.12 Her mother then reported the encounter to the town’s chief of police.13
The State filed a petition alleging D.S.’s delinquency14 for harassment in the third degree, in violation of Iowa Code sections 708.7(1)(b) and 708.7(4).15
A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, . . . “personal contact” means an encounter in which two or more people are in visual or physical proximity to each other.
Id. § 708.7(1)(b). Section 708.7(4) describes harassment in the third degree, which is considered a simple misdemeanor. Id. § 708.7(4). In its May 10 “Findings, Conclusions, and Order,”16 the juvenile court considered whether D.S. had intended to “threaten, intimidate, or alarm” T.B. as required by Iowa’s criminal harassment statute. The court first found no evidence that D.S. “threatened” or “alarmed” T.B.17 Because D.S. was “substantially shorter and weigh[ed] less than T.B.,” the court found it “not reasonable to believe T.B. anticipated any physical harm or threat of physical harm from D.S.”18 Despite the lack of threat to physical security, the court found that D.S. had no legitimate purpose in speaking to T.B. and intended to make her “lack self-confidence in her relations with the opposite sex and about her body-build.”19 In turn defining “intimidate” as “to make timid or fearful” and “timid” as “lacking in courage or self-confidence,” the juvenile court ruled that D.S.’s statements constituted intimidation and that D.S. had committed a delinquent act.20
The Iowa Court of Appeals reversed and remanded, ruling that the juvenile court’s definition of “intimidate” erred for three reasons. First, defining “intimidate” to mean “make one lack self[-]confidence” failed to comport with the word’s common understanding.21 Second, the juvenile court’s definition displaced the statutory term from “its structural and syntactic context.”22 Because the charged offense appears within a state code that governs assaults, it must “encompass[] something more than words or conduct intended to make the victim feel less confident in herself.”23 Invoking the canon of statutory construction noscitur a sociis,24 the court reasoned that “intimidate” must be construed similarly to “threaten” and “alarm.”25 Finally, the juvenile court’s capacious interpretation of “‘intimidate’ create[d] constitutional concerns implicating free speech rights and due process rights regarding vagueness.”26 In order to avoid potential constitutional infirmity, the court concluded that “intimidation” must be restricted to words of “true threat . . . with the intent of placing the victim in fear of bodily harm or death.”27 Employing this narrower definition, the intermediate court found insufficient evidence to prove that D.S. had criminally harassed her schoolmate.28
The Iowa Supreme Court both vacated the decision of the Court of Appeals and reversed the judgment of the juvenile court.29 Writing for the court, Justice Zager agreed with the intermediate court’s reversal and dismissal of the delinquency petition, but on different grounds. Rather than relying on the proper definition of “intimidate,” the court emphasized both the harassment statute’s requirement of “purposeful[] . . . personal contact” and its own previous determination that harassment is a specific-intent crime.30 Accordingly, the court first found that D.S. had not initiated contact with T.B. and thus failed to satisfy the element of “purposeful personal contact.”31 Indeed, unlike defendants in earlier harassment cases who had unequivocally initiated verbal and physical contact,32 D.S. had simply exited the school bus as she “had apparently done on every prior occasion without incident.”33 The court also stressed that D.S. had yelled “T bitch” to her friend, not to T.B., and that the encounter took place only because T.B. had mistakenly believed that D.S. had addressed her.34 Given that D.S. did not initiate conversation with T.B., the court found insufficient evidence for the purposeful personal contact element of harassment.35
Moreover, because D.S. failed to initiate contact with T.B., the court found that she necessarily lacked the specific intent to threaten, intimidate, or alarm T.B. at the time their encounter began.36 The court also did not reach the question of whether D.S.’s taunts constituted “intimidation” because, once again, D.S. did not purposefully or intentionally create her encounter with T.B.37 Put differently, the manner in which the encounter began, rather than the content of the encounter, determined whether D.S. had harassed T.B. Without evidence that D.S. purposefully sought out the incident with T.B., the court did not adjudicate whether their conversation contained potential intimidation that might have constituted harassment.38
Because the relationship between D.S. and T.B. involved longstanding, aggressive behavior,39 the D.S. opinion has implications for the availability of criminal harassment statutes to punish bullying behavior. Declining to adopt an available broader reading of Iowa’s criminal harassment statute, the Iowa Supreme Court emphasized instead that D.S. must have initiated contact with T.B. to meet the “purposeful personal contact” element even though the statutory text and applicable precedent do not require such a reading. The emphasis on initiation further shaped the analysis of requisite intent, with the court concluding that D.S. must have harbored specific intent to threaten, alarm, or intimidate T.B. at the initiation of their encounter. With this narrow interpretation of Iowa’s criminal harassment statute, the court limited one of the most generally applicable legal mechanisms for antibullying intervention.
The statutory language did not require the court’s conclusion that there was no “purposeful personal contact” unless D.S. initiated contact with her schoolmate. Indeed, the statutory definition of “personal contact” requires only that “two or more people are in visual or physical proximity to each other. ‘Personal contact’ does not require a physical touching or oral communication, although it may include these types of contacts.”40 The text is silent on the issue of initiation and thus does not require courts to define “purposeful personal contact” in such a way.
Nor does applicable precedent impose an initiation requirement. In fact, notwithstanding the court’s efforts to distinguish State v. Button,41 that case featured an alternative way to satisfy the “purposeful personal contact” requirement. In Button, the defendant argued that he could not have initiated purposeful personal contact with — and thereby could not have harassed — a police officer while handcuffed and detained against his will.42 Although the defendant had not initiated his arrest or detention, the court nonetheless found requisite personal contact because he “chose to make the threats, turning the communication into harassment.”43 It was sufficient that Button purposefully continued to engage with his arresting officer, even though he had not initiated the encounter. In fact, the Button court explicitly stated that initiation was not the main criterion for “purposeful personal contact”: “This element of harassment goes more toward Button’s control of his own actions than it does to who sought out the interaction. Button was the master of his threatening statements, and he controlled his conduct at all times. . . . Button purposefully expanded his detention into a threatening encounter.”44 The same logic could have applied to D.S. Although she did not initiate contact with T.B., she chose to engage and escalate their encounter. Indeed, rather than inform T.B. that the call for “T bitch” was not directed at her, D.S. hurled names at her. From this perspective, D.S., like Button, purposefully engaged in conduct leading to personal contact with T.B. The court, however, held D.S. to a different standard, holding that only through initiation could she have established purposeful personal contact.45
Beyond the inquiry into purposeful personal contact, the court’s focus on initiation played a determinative role in its conclusion that D.S. did not harbor the requisite intent to threaten, alarm, or intimidate. The court grounded the specific intent analysis again on the initiation of contact, rather than the content of D.S.’s speech. Based on D.S.’s use of words like “fat” and “skanky,” as well as her insinuation that the victim engaged in inappropriate sexual relations,46 the juvenile court’s finding that D.S. intended T.B. to “lack self-confidence in her relations with the opposite sex and about her body-build” seems reasonable.47 The Iowa Supreme Court, however, did not analyze whether such a finding was sufficient for criminal harassment. Instead, the court established the relevant timeframe at which D.S. must have harbored the requisite specific intent as the initiation of the encounter, rather than the time at which D.S. made the statement at issue.48 Of course, without evidence that D.S. purposefully initiated the encounter, there could also be no evidence that she had any sort of intent at the moment the encounter began. By having the intent inquiry turn on initiation of contact, the court further narrowed its interpretation of the harassment statute, finding no need to adjudicate the proper definition of “intimidate.”49
For antibullying advocates, the D.S. outcome stands to limit a potentially powerful, generally applicable means of legal intervention against bullying. In particular, as the recent political attention and legislative action around bullying were triggered by the highly publicized suicides of teenagers subject to emotional taunting,50 antibullying advocates have sought to address bullying behavior resulting specifically in nonphysical, emotional, or psychological harm.51 With the limited applicability of other existing legal remedies,52 criminal harassment laws offer a generally applicable tool for legal intervention against such emotional bullying.53 Notably, the 1980 Model Penal Code worded the model harassment statute in a “‘designedly general way’ to further ‘its purpose to proscribe forms of harassment that cannot be anticipated and precisely stated in advance.’”54 In contrast to hate-crime laws that apply only to members of protected classes or technology-based laws that can address only cyberbullying, criminal harassment statutes hold promise as an intervention mechanism precisely because of their broadly applicable nature.
By focusing on initiation as a determinative element of both “purposeful personal contact” and specific intent, the D.S. court limited the range of bullying behaviors that harassment statutes may capture. Of course, the decision does not categorically foreclose the Iowa harassment statute’s application to bullying behavior. But it may suggest that such application will depend on the technicalities of initiation. Those bullies who happen upon opportunities to bully, rather than initiating such encounters, may face no judicial sanction for their behavior. While the merits of criminalizing bullying behavior are up for debate,55 proponents of this approach may find that the decision disappointingly hampers one of the few generally applicable channels through which the legal system can address bullying behavior.